American University International Law Review
Volume 18 | Issue 1
Article 6
2002
Yahoo!, Inc. v. LICRA: The French Challenge to
Free Expression on the Internet
Elissa A. Okoniewski
Recommended Citation
Okoniewski, Elissa A. "Yahoo!, Inc. v. LICRA: The French Challenge to Free Expression on the Internet." American University
International Law Review 18, no. 1 (2002): 295-339.
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YAHOO!, INC. V. LICRA: THE FRENCH
CHALLENGE TO FREE EXPRESSION ON THE
INTERNET
ELISSA A. OKONIEWSKI*
IN TRO DU C T ION ..............................................................................................................
2 96
I. B A C K GRO U N D ........................................................................................................
2 99
A. THE FIRST AMENDMENT TO THE U.S. CONSTITUTION ............... 299
B. ARTICLE ELEVEN OF FRANCE'S DECLARATION OF THE
RIGHTS OF MAN AND OF THE CITIZEN ...................................................
T H E YAH O O! CASE B EG IN S ............................................................................
THE FRENCH TRIBUNAL D ECISION ..........................................................
THE U.S. DISTRICT COURT DECISION ...................................................
ANALYSIS OF THE COURTS' DECISIONS ...............................................
320
II . A NA LY SIS .....................................................................................................................
A.
B.
C.
D.
303
30 7
3 11
3 11
314
316
C . T HE IN T ER N E T .......................................................................................................
1. The F rench D ecisions............................................................................
2 . Th e U.S . Decisio n ......................................................................................
3. InternationalInconsistency Callsfor a Solution ................
III. RE C O M M E N DA T ION S ......................................................................................
A. RECOMMENDATIONS FOR FRANCE ...........................................................
320
32 3
324
327
328
1. France Should Prosecute its Own Citizens for
IntentionallyAccessing Forbidden Material......................... 328
2. FranceShould Repeal Penal Code R. 645-1 ......................... 330
J.D. Candidate, May 2003, American University Washington College of Law;
B.S. Psychology, 2000, The Pennsylvania State University. I would like to extend
special thanks to my parents, George and Elizabeth Okoniewski, for their constant
encouragement and belief in my abilities. I would also like to thank the American
University InternationalLaw Review staff for their diligent efforts in preparing this
Comment for publication. Finally, I would like to dedicate this Comment to my
grandmother, Kazimiera Wojcik. Her survival of World War II and her
courageous immigration to the United States, in search of the very freedom that is
the subject of this Comment, have always inspired me to achieve my goals.
295
296
AM. U. INT'L L. REV.
[18:295
3. France Should Follow the European Convention on
H um an R igh ts ..............................................................................................
3 32
B. RECOMMENDATIONS INVOLVING COLLECTIVE ACTION ........... 333
1. The "Country of Origin " Principle.............................................. 333
2. An InternationalCourtfor Internet Issues.............................. 337
C ON C LU S ION .....................................................................................................................
338
INTRODUCTION
The recent litigation between the Internet service provider Yahoo!,
Inc. and two French student organizations' addresses novel and
important issues resulting from the global reach of the Internet.2 The
setting for this dispute is the modem world of computers, where
ideas and information transcend borders through the Internet, while
space and time between people disappear.3 The modem capabilities
of the Internet, coupled with varying freedom of speech laws from
nation to nation, have led to international disputes about which
country's laws should regulate speech over the Internet. 4
In France, freedom of speech laws are not as broad as in the
United States, and expression is more easily restricted by the
government. 5 For instance, French Penal Code R. 645-1 restricts free
expression by making it a crime to display, exchange, or sell Nazi
1. See Margaret Khayat Bratt & Norbert F. Kugele, Who's In Charge?, 80
MICH. B. J. 42, 44 (2001) (establishing that LICRA is the International League
Against Racism and Anti-Semitism, and UEJF is the Union of French Jewish
Students).
2. See Yahoo!, Inc. v. La Ligue Contre le Racisme et L'Antisemitisme, 169 F.
Supp. 2d 1181, 1186 (N.D. Cal. 2001) (noting that the global reach of the Internet
makes this case novel and important).
3. See id. (stating that in the modem world, information can be passed quickly
across the globe rendering meaningless the vast distances through which it travels).
4. See id. at 1192 (explaining that the issues in the case come about because
the practice of law-abiding freedom of speech in one country may command an
audience in another country where the speaker's words are not legal).
5. See infra notes 39-59 and accompanying text (explaining the limitations
placed on freedom of speech in France).
20021
YAHOO!, INC. V. LICRA
297
paraphernalia or Third Reich memorabilia. 6 This restriction was the
subject of L 'Union Des Etudiants Juifs De France Et La Ligue
Contre Le Racisme Et L 'Antisemitisme v. Yahoo! And Yahoo! France
("Yahoo! Case"), in which a French court ruled that Yahoo! violated
R. 645-1 by making available, on its auction website, various Nazirelated items to Internet users in France.7 Yahoo! sought relief in the
United States from the strict penalties imposed by the French court.8
A U.S. district court subsequently ruled that the French order was
unenforceable, basing its decision on the guarantee of freedom of
speech in the First Amendment of the United States Constitution. 9
This issue is significant because people will continue to break
foreign laws with speech over the Internet, and disputes will
inevitably continue to arise over these activities. 10 The Internet is a
growing and changing part of our society and will continue to affect
our lives in the future as new related technologies become
available. The Yahoo! Case is only one example of how the Internet
and conflicting speech laws can cause international disputes. 2
6. See C. PiaN. ART. R. 645-1 (2001) [hereinafter French Penal Code R. 645-1]
(providing that the display or sale of Nazi-related materials is prohibited in
France).
7. See UEJF & LICRA v. Yahoo!, Inc. & Yahoo! France, T.G.I. Paris, May
22, 2000 [hereinafter May Tribunal Decision] (condemning Yahoo! for its
at
Code
R.
645-1),
available
violation
of
French
Penal
http://www.juriscom.net/txt/jurisfr/cti/yauctions20000522.htm (last visited Oct. 12,
2002); see also CHRISTIAN DADOMO & SUSAN FARRAN, THE FRENCH LEGAL
SYSTEM 52-53 (1993) (explaining the structure of the civil courts in France). The
Tribunal de Grande Instance, where French judges heard the Yahoo! Case, was
created in 1958 as a court of general jurisdiction. Id. Three judges usually sit en
audiencepublique or in an open court in the Tribunal de Grande Instance. Id.
8. See May Tribunal Decision, supra note 7 (ordering Yahoo!, Inc. to pay
LICRA 10,000 Francs, and ordering Yahoo!, Inc. and Yahoo France to pay UEJF
10,000 Francs). The court also ordered Yahoo!, inter alia, to make it impossible for
French Internet users to view Nazi items on Yahoo!'s auction site. Id.
9. See Yahoo!, Inc., 169 F. Supp. 2d at 1194 (holding that the First
Amendment prohibits enforcement of the French order).
10. See infra notes 157-61 and accompanying text (explaining predictions for
the future impact of the Internet).
11. See id. (noting various Internet technologies that will affect our lives in the
future).
12. See infra notes 154-55 and accompanying text (stating that foreign citizens
have been forced to appear in German and Italian courts for breaches of those
AM. U. INT'L L. REV.
[18:295
Various similar disputes have occurred involving citizens of other
nations, demonstrating that this is a widespread global problem. 3
Because this issue exists on such a large scale, a consensus must be
reached on how nations will settle future disputes, not only between
France and the United States, but between all nations.' 4 For purposes
of this Comment however, the primary focus will be the dispute
between France and the United States in the Yahoo! Case, which will
serve as a clear example of the larger, global problem.
Section I of this Comment discusses the history of freedom of
speech laws in both the United States and France and delineates the
differences between the two. This section also provides background
on the Internet, its creation, and how it has impacted society. Section
II explains how L 'Union Des Etudiants Juifs De France ("UEJF")
and La Ligue Contre Le Racisme Et L 'Antisemitisme ("LICRA")
initiated the Yahoo! Case and discusses the decisions of the French
Tribunal de Grande Instance de Paris and the U.S. District Court for
the Northern District of California. This section also provides a
detailed analysis of the two courts' decisions, and examines the
drastic differences between freedom of speech rights in the United
States and France. This section concludes that, in order to avoid
similar future disputes, the international inconsistency of freedom of
speech laws calls for a solution, not only between France and the
United States, but worldwide. Section III recommends several ways
to settle future conflicts between the United States and France
involving speech over the Internet. This section first recommends
courses of action that France may take on its own, and then
recommends collective actions that France and the United States may
take together. These collective recommendations are also applicable
on a global scale.
countries' speech laws in instances similar to the one involved in the Yahoo!
Case).
13. Id.
14. See infra notes 178-236 and accompanying text (providing several
recommended solutions to the international problem caused by inconsistencies in
freedom of speech laws).
YAHOO!, INC. v. LICRA
2002]
299
I. BACKGROUND
A. THE FIRST AMENDMENT TO THE U.S. CONSTITUTION
The First Amendment to the Constitution of the United States
provides, "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the
"..."15
In the United States, the
freedom of speech, or of the press .
First Amendment is highly valued under the view that free
expression is necessary to preserve a free society. 6 Freedom of
speech is a fundamental cornerstone in American democracy, 7
where individuals self-govern and the government itself has little
authority to impose restrictions on that right.18 Indeed, the search for
15. U.S. CONST. amend. I.
16. See JAMES E. LEAHY, THE FIRST AMENDMENT, 1791-1991 Two HUNDRED
FREEDOM 108 (1991) (commenting on language from Stromberg v.
California, 283 U.S. 359, 369 (1931)). "The maintenance of the opportunity for
free political discussion to the end that government may be responsive to the will
of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our
constitutional system." Id. See also DANIEL A. FARBER, THE FIRST AMENDMENT 6
(1998) (supporting toleration of free speech by arguing that tolerance works better
than repression in maintaining democratic order). Suppression drives dissidents
into hiding, provides them with martyrs, and gives their ideas the attractiveness of
that which is taboo. Id.
17. See DONNA DEMAC, STATE OF THE FIRST AMENDMENT 1 (1997) (stating
that "[t]he right to speak one's mind, whether privately or publicly, without fear of
government restriction, is one of the cornerstones of American democracy"); see
also LEAHY, supra note 16, at 108 (distinguishing Stromberg v. California as the
first Supreme Court case to acknowledge the right to speak freely). This decision
came 140 years after the adoption of the Bill of Rights. Id. See also Stromberg, 283
U.S. at 369 (upholding the right to freedom of speech by reversing a conviction for
the display of a red flag).
YEARS OF
18. See Julien Mailland, Freedom of Speech, The Internet, and the Costs of
Control: The French Example, 33 N.Y.U. J. INT'L L. & POL. 1179, 1183-84 (2001)
(stating that there is an ideal in American democracy that individuals are intelligent
enough to self-govern and that the government is limited in restricting freedom of
speech); see also FARBER, supra note 16, at 3 (stating that the government cannot
even restrict false or hateful expression).
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freedom of speech was one of the main desires that brought the first
settlers to America.' 9
Limitations on the right to speak in the United States are
minimal. 20 The First Amendment generally prevents the government
from prohibiting speech or expressive conduct merely because the
government disagrees or disapproves of the content. 2' Exceptions to
this general rule include speech and expression that constitute
defamation22 or "fighting words, '23 or is obscene.24 While not
totally prohibited, these types of speech can be regulated, consistent
with the Constitution.25 In addition, the Supreme Court has upheld
reasonable time, place, and manner restrictions on speech, but only
19. See DEMAC, supra note 17, at 1 ("The quest for freedom of speech was one
of the main desires, along with religious liberty, that brought European refugees
from tyranny to the New World in the first place.").
20. See LEAHY, supra note 16, at 196 (discussing the evolution of the meaning
of freedom of speech and giving as an example of regulated speech words that
create a clear and present danger that will bring about evils that the government
has a right to protect); see also FARBER, supra note 16, at I (stating that the
Supreme Court has limited governmental regulation of free speech). "The list of
unprotected speech included incitements to violence, libel, obscenity, fighting
words, and commercial advertising ... It is a gross oversimplification, however, to
say that any of these categories is currently unprotected by the First Amendment."
Id. at 14.
21. See R.A.V. v. St. Paul, Minnesota, 505 U.S. 377, 382 (1992) (explaining
that content based regulations on speech are presumptively invalid).
22. See generally Beauharnais v. Illinois, 343 U.S. 250, 251-305 (1952)
(involving a law that criminalized defamation of racial and religious groups in
public places).
23. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining
"fighting" words as words which, by their very utterance, inflict injury or tend to
incite an immediate breach of the peace).
24. See Roth v. United States, 354 U.S. 476, 496 (1957) (upholding the
constitutionality of an obscenity statute that made the keeping of indecent or
obscene material for sale or advertising punishable).
25. -See R.A. V. 505 U.S. at 383 (explaining that obscene or defamatory speech
or fighting words can be regulated because of their "constitutionally proscribable"
content, and not because these areas of speech are "entirely invisible to the
Constitution").
2002]
YAHOO!, INC. v. LICRA
301
when they are "justified without reference to the content of the
26
regulated speech.
Although the First Amendment only mentions Congress, free
expression is also protected against state government infringement
pursuant to the Fourteenth Amendment. 27 Further, even though the
First Amendment speaks only of speech and the press, other forms of
communication are also protected. 28 These forms of communication
include electronic media as well as symbolic speech, such as flag
burning or cross burning.2 9 It is also important to note that the First
Amendment sometimes extends to protect commercial speech by
corporations in the United States.30
26. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that
the main inquiry in speech cases is whether the government has adopted a
regulation because of its disapproval with the message it conveys).
27. See FARBER, supra note 16, at I (explaining that the First Amendment
protects Americans from limitations by Congress, the President, and the federal
courts). "[T]he application of the First Amendment to the states is now beyond
dispute." Id. at 12.
28. See id. at 1 (explaining that some interpret the First Amendment's text to
apply to much more than simply oral and written words).
29. See id. at 2 (indicating that many people were shocked in 1989 with the
California district court's decision to allow burning of the American flag); see also
Texas v. Johnson, 491 U.S. 397 (1989) (holding that the burning of an American
flag is expressive conduct protected under the First Amendment); R.A. V., 505 U.S.
at 381 (striking as unconstitutional under the First Amendment, a city ordinance
prohibiting cross burning, because the ordinance prohibited otherwise permitted
speech only on the basis of the subjects addressed in the speech). The ordinance
also would have outlawed public or private placement of Nazi swastikas. Id. at
380. The Court noted that a law outlawing outdoor fires could have made flag
burning or cross burning punishable, but that an ordinance outlawing flag burning
for dishonoring the flag could not. Id. at 385. See also DEMAC, supra note 17, at 14
(stating that the Supreme Court has a tendency to come down in favor of free
speech and has even ruled that racist sentiments such as cross burning are worthy
of First Amendment protection).
30. See LEAHY, supra note 16, at 180 (explaining that corporations are persons
under the Fourteenth Amendment). Corporations have protection under the Due
Process and Equal Protection clauses. Id. See also First Nat'l Bank of Boston v.
Att'y Gen., 359 N.E.2d 1262, 1270 (1977) (holding that when a general political
issue materially affects a corporation's business, property or assets, that
corporation may claim First Amendment protection for its speech).
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Although the U.S. Constitution is not unique in protecting speech,
nowhere else in the world is the protection so expansive. 3' The First
Amendment protects not only political speech, but also offensive and
disagreeable speech.32 Freedom of speech even goes so far as to
protect expressions of racial hatred. 33 The U.S. Supreme Court has
made it clear that freedom of speech is a value so important to
American society that it outweighs almost any other interest.34 In
fact, it even outweighs an interest in protecting our youth from
sexually explicit material on the Internet.35 Justice Stevens, speaking
for the majority in Reno v. A.C.L. U.,36 stated that speech through the
Internet is entitled to the highest protection from governmental
restriction.37 In Reno, the Court ruled that statutory provisions
enacted to protect minors from "indecent" and "patently offensive"
31.
See FARBER, supra note 16, at I (stating that all democracies provide free
speech in some form, but none to the extent of the United States).
32. See Adam Clayton Powell III, Children, the Internet and Free Speech, in
14 MEDIA STUDIES JOURNAL, THE FIRST AMENDMENT 36, 37 (Lisa DeLisle, et al.
eds., 2000) (stating that even if people do not want to see it, read it, or hear it, bad
taste is protected by the First Amendment).
33. See FARBER, supra note 16, at 2 (highlighting the Court's decision in Texas
v. Johnson and stating that expression may not be regulated simply because it is
offensive); see also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill. 1978) cert. denied,
439 U.S. 916 (1978) (ruling that a prohibition on handing out materials promoting
racial or religious hatred was unconstitutionally vague). But see FARBER, supra
note 16, at 103 (noting that many scholars argue for drastic changes in freedom of
speech in order to rid society of racist hate speech). This is currently one of the
most significant controversies concerning the First Amendment. ld.
34. See Smith v. Collin, 439 U.S. 916, 916 (denying certiorari, thereby
allowing to stand the lower court's decision that a prohibition on handing out
materials promoting racial or religious hatred was unconstitutionally vague); see
also Mailland, supra note 18, at 1183 (opining that in Smith v. Collin, the Supreme
Court made it clear that freedom of speech would withstand any legal balancing
test).
35. See Reno v. A.C.L.U., 521 U.S. 844, 849 (1997) (striking a statute
designed to protect minors from viewing pornography and other offensive material
on the Internet because the restriction was unconstitutional under the First
Amendment); see also DEMAC, supra note 17, at 6 (explaining that the "crusade
against indecency" launched what was probably the most serious threat to freedom
of expression in the 1990s).
36. 521 U.S. 844 (1997).
37. See Reno, 521 U.S. at 863.
2002]
YAHOO!, INC. V. LICRA
communications on the Internet abridged the freedom of speech
protected by the First Amendment.38
B. ARTICLE ELEVEN OF FRANCE'S DECLARATION OF THE RIGHTS
OF MAN AND OF THE CITIZEN
Unlike the expansive freedom that the First Amendment affords
U.S. citizens, French citizens exercise a more restricted freedom of
speech.3 9 Article Eleven of the Declaration of the Rights of Man and
of the Citizen of 1789 states, "[t]he free communication of thoughts
and opinions is one of the most precious rights of man. Every citizen
may, accordingly, speak, write and print with freedom, but shall be
responsible for such abuses of this freedom as shall be defined by
law."4 Although Article Eleven seems to provide French citizens
with expansive freedom of speech, it is qualified by the last clause,
which grants to the French government an active role in creating
laws that restrict that freedom.4' This active role in restricting speech
is vastly different than the negative command to the U.S. government
in the First Amendment-"Congress shall make no law..."I'
38. See id. at 849 (ruling that despite the importance of congressional goals to
protect children from harmful material on the Internet, restrictions on freedom of
speech violate the First Amendment); see also Powell Il1, supra note 32, at 41
(stating that in Sweden, rather than parents using filtering software or the
government imposing restrictions on freedom of expression, Swedish children are
taught to filter material through ethical training).
39. See WALTER CAIRNS & ROBERT MCKEON, INTRODUCTION TO FRENCH
LAW 115 (1995) (explaining that freedom of speech in France is restricted by
public authorities).
40. DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 11 (Fr.
1789), available at http://www.hrcr.org/docs/frenchdec.html (last visited Oct. 12,
2002); see also RAYMOND YOUNGS, ENGLISH, FRENCH & GERMAN COMPARATIVE
LAW 180 (1998) (explaining the status and workings of freedom of speech in
France); CAIRNS & MCKEON, supra note 39, at 114 (explaining that the adoption
of the Universal Declaration of the Rights of Man in 1789 guaranteed fundamental
freedoms, which France is now proud to confer upon its citizens); GEORGE A.
BERMANN ET AL., FRENCH LAW, CONSTITUTION AND SELECTIVE LEGISLATION 2-3
(1998) (quoting Article Eleven of the Declaration).
41. CompareMailland, supra note 18, at 1184 (stating that the positive role of
the French government is "striking"), with U.S. CONST. amend. I (connoting a
vastly different explanation of how free speech laws should be promulgated).
42. See supra note 41 and accompanying text (explaining the differences
between French and American freedom of speech laws).
AM. U. INT'L L. REV.
[18:295
Lawmakers in France have assumed their active role and have
exercised power under Article Eleven, restricting freedom of speech
in many ways.43
Article Five of the Declaration of the Rights of Man and of the
Citizen gives French public authorities the right to limit free speech
by outlawing certain actions in the public interest, in order to avoid
injury to society. 44 Additionally, Article Thirty-Four of the French
Constitution grants the legislature authority to determine the
conditions under which freedom of speech may be exercised.45 For
example, the Minister of the Interior may prohibit the distribution of
published material about the French President, whether created in
France or abroad.46 Publications which are "aimed at the young" can
be seized and destroyed.47 The government also has the right to
suppress "unnecessarily provocative" advertising campaigns.48
43. See supra notes 39-42, infra notes 44-59, and accompanying texts
(explaining various examples of how the French government has limited the
freedom of speech provided to its citizens).
44. See
DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN
art. 5 (Fr.
1789), available at http://www.hrcr.org/docs/frenchdec.html (last visited Oct. 12,
2002); see also Mailland, supra note 18, at 1184 (explaining Article Five of the
Declaration of the Rights of Man and of the Citizen); CAIRNS & MCKEON, supra
note 39, at 115 (stating that public authorities can restrict the rights of man in order
to prevent their abuse); BERMANN, supra note 40, at 2-3 (quoting Article Five of
the Declaration).
45. FR. CONST. art. 34; see also Mailland, supra note 18, at 1226 (explaining
Article Thirty-Four of the French Constitution); BERMANN, supra note 40, at 2-17
(quoting Article Thirty-Four of the French Constitution that states, "[a]ll laws (la
loi) shall be passed by Parliament. Laws shall establish the rules (rdgles)
concerning: -civil rights and the fundamental guarantees accorded citizens for the
exercise of their public liberties .... ).
46. See YOUNGS, supra note 40, at 182 (explaining how political control limits
freedom of speech in France). The author further notes a decision of the Tribunal
de Grande Instance, which held that distribution of The Great Secret, a French
work by President Mitterrand's former doctor contravening the right to respect for
private life, could be limited by French public authorities. Id. at 182 n.659.
47. See id. at 182 (explaining that publicity of attacks on morality can be
forbidden by the French Criminal Code). The author also cites a French court
decision, which indicates that it is not necessary to show the publication is
"primarily" aimed at the young in order for it to be confiscated. Id. at 182 n.662.
48. See id. at 182 (explaining how governmental beliefs of morality, decency,
and religion can restrict freedom of speech in France). Additionally, the author
2002]
YAHOO!, INC. V. LICRA
305
French freedom of speech does not include the right to criticize the
religious beliefs of others, or to express racial or religious hatred.49
Consequently, the publication of racist, anti-Semitic, xenophobic, or
revisionist remarks is criminal.50
The French government further exercises its active role in
restricting freedom of speech through the Law of July 29, 1881,
which regulates the press by imposing restrictions on hate speech.51
This law makes the expression of racist thoughts, including hate
speech, a crime.52 The French government enacted this law with the
belief that it has a duty to protect its citizens from the harmful effects
of such speech.53
The specific provision of French law at issue in the Yahoo! Case is
a perfect example of the limitations placed on free speech in
France. 54 The provision makes it a crime in France to display or sell
paraphernalia that is related to the Third Reich or is of an anti-
cites a decision of the Tribunal de Grande Instance, which suppressed an
advertising campaign by the clothing company Benetton. Id. at 182 n.660.
49. See YOUNGS, supra note 40, at 182 (indicating that attacking or showing
hatred of religion or race is not included in freedom of speech in France).
50. See id. (indicating that it is a crime in France to publish racist or similar
comments).
51. See Law No. 637 of July 29, 1881, J.O., July 30, 1881, 125 [hereinafter The
Law of July 29, 1881] (criminalizing racist statements); see also Mailland, supra
note 18, at 1184-85 (illustrating the active role the French government takes in
protecting its citizens from hate speech).
52. See The Law of July 29, 1881, supra note 51 (prohibiting hate speech).
53. See Mailland, supra note 18, at 1185 (explaining the French government's
belief that it should protect its people from the harm that hate speech could cause).
In addition, the French Public Health Code criminalizes favorable presentation of
drug use, including research about the medical use of marijuana. Id. at I 85-86.
France has also prosecuted people whose dissents against the government's policy
were deemed "too vigorous." Id. at 1186. But see Sophie Boyron, Constitutional
Law, in PRINCIPLES OF FRENCH LAW 139, 158 (1998)
(stating that French
Constitutional texts have consistently protected freedom of opinion, including
decisions of the Conseil Constitutionnel, a group appointed to act as a pseudoconstitutional court); CAIRNS & MCKEON, supra note 39, at 117 (stating that the
individual is free to think any thoughts on any topic, so long as he or she does not
infringe upon the public order).
54. See French Penal Code R. 645-1 (outlawing the display or sale of Nazirelated materials).
306
AM. U. INT'L L. REV.
[18:295
Semitic nature.5" It outlaws such items as Nazi-related photographs,
coins, stamps, and texts.56 France enacted the law in the wake of
World War II while all of Europe struggled to recover from the
atrocities brought on by the Nazis. 57 The intent of the law is to
protect French citizens, especially those of Jewish faith, from the
memories of suffering endured by their nation and their people at the
hands of Nazi criminals. 8 By protecting the interests of some French
55. See id. (criminalizing the display or distribution of Third Reich or antiSemitic material); see also Patricia L. Bellia, Chasing Bits Across Borders, 2001
U. CHI. LEGAL F. 35, 65 n.103 (2001) (providing an unofficial translation of
French Penal Code R. 645-I). R. 645-1 states:
It shall be punished by the fine provided for violations of the fifth class,
except for the needs of a film, show, or exhibit including an historical
evocation, to wear or to display in public a uniform, insignia, or emblem
evoking the uniforms, insignia, or emblems worn or displayed either by
the members of an organization declared to be criminal pursuant to
Article 9 of the statute of the international military tribunal annexed to the
London agreement of August 8, 1945, or by a person found guilty by a
French or international court of one or several crimes against humanity
provided by Articles 211-1 to 212-3 or provided in law number 64-1326
of December 26, 1964.
1d. This Article is a regulation, which is the gravest of five classifications of
misdemeanors, and is punishable by fines only. 1d.
56. See Shannon Lafferty, Yahoo's French Connection: Portal Takes Aim at
Foreign Attempt to Restrict Site Contents, THE RECORDER, Sept. 24, 2001
(explaining that Yahoo! was subject to suit for making these very items available
on its auction site, allegedly in violation of French Penal Code R. 645-1), available
at
http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/Vie
w&c=LawArticle&cid= 1015973979949&live=true&cst = 1&pc=0&pa=O
(last
visited Oct. 12, 2002).
57. See id. (stating that French Penal Code R. 645-1, enacted after World War
II, even outlaws the ownership of Adolf Hitler's Mein Kamp/).
58. See May Tribunal Decision, supra note 7 (stating that the display and sale
of Nazi objects not only violates French criminal law, but also offends its citizens,
especially Jewish citizens, by reminding them of the atrocities committed by the
Nazis during World War II); see also Calvin Peeler, The Politics of Memory:
Reconstructing Vichy and the Past the French Chose to Forget, 19 WHITTIER L.
REV. 353, 353 (1997) (explaining that the French government enacted a policy
encouraging its citizens to forget the past abuse and deportation of Jews during
World War I1). The French government is reluctant to acknowledge any
responsibility of the French state in deportation of Jews, but was so opposed to
neo-Nazi revisionists that it enacted a law preventing the denial of the existence of
the Holocaust. Id. at 353.
2002]
YAHOO!, INC. V.LICRA
307
citizens, however, the law has also managed to cause harm by
infringing upon their freedom of expression. 9
C. The Internet
International differences in freedom of speech laws intersect
during expression on the Internet, warranting a discussion of this
communication medium. The original design of the Internet was
intended to be a decentralized and self-sufficient system, capable of
transmitting information without human control. 60 It grew at an
explosive rate due to the creation of the World Wide Web, which
designers intended to be a universal mechanism that could function
on any computer.61 Once the World Wide Web became publicly
available at no cost, Internet use greatly expanded. 62 As the demand
for Internet services increases exponentially around the world,
59. See Yahoo!, Inc., 169 F. Supp. 2d at 1189 (explaining that France's
enforcement of R. 645-1 would chill Yahoo!'s First Amendment right of free
speech); see also Peeler, supra note 58, at 353 (declaring that French citizens
launched an inquiry to learn more about their government's actions during World
War II). The French government attempted to cleanse France of all reminders of
the war, but there is now a desire and need for historical truth because "[w]hen it
comes to human atrocities, nothing is erased with time." Id. at 357.
60. See Reno v. A.C.L.U., 521 U.S. 844, 849-50 (1997) (explaining that the
Internet began as a military program involving defense contractors and
universities); see also Lyombe Eko, Many Spiders, One Worldwide Web: Towards
a Typology of Internet Regulation, 6 COMM. L. & POL'Y 445, 448-49 (2001)
(describing the origins and global reach of the Internet); William Crane, The
World-wide Jurisdiction: An Analysis of Over-inclusive Internet Jurisdictional
Law and an Attempt by Congress to Fix It, II DEPAUL-LCA J. ART & ENT. L. &
POL'Y 267, 267-68 (2001) (noting that the initial purpose of the Internet was to
allow important research to continue even if part of the network was damaged).
61. See Yahoo!, Inc., 169 F. Supp. 2d at 1183 n.1 (explaining that the
"Internet" and the "World Wide Web" are separate entities, although the Court
refers to them collectively as the "Internet"). The Internet, as a decentralized
networking system, links computers and computer networks around the world,
while the World Wide Web, as a publishing forum, contains millions of websites
with varying content. Id. See also Eko, supra note 60, at 448-49 (explaining that
the Centre Europ~en de Recherche ("CERN") in Switzerland designed the World
Wide Web, which then grew at an explosive rate).
62. See Eko, supra note 60, at 449 (explaining that the greatest impetus for the
growth of the Internet was the decision by CERN to make the World Wide Web
available to everyone).
308
AM. U. INT'L L. REV.
[18:295
regional Internet providers struggle to keep up with the rapid
growth.63
The Internet provides users with vast amounts of information,
supplied by others all over the world.64 Although the use of Internet
information is most widespread in the United States, it has grown
quickly in other countries as well. 65 While the Internet offers unique
opportunities never available before, it also presents new problems.66
Unlike other media, the distinction between speaker and listener is
unclear during Internet communication. 67 This requires modification
63. See Bratt & Kugele, supra note 1, at 43 (explaining that worldwide access
to and use of the Internet has "grown at an extraordinary pace in recent years"). In
1992, approximately 1.3 million computers accessed the Internet. Id. By 2000,
approximately 260 million people worldwide had access to the Internet. Id.
Estimates indicate that by 2005, over 765 million people will be using the Internet.
Id. See also Ari Kaplan, Code and Other Laws of Cyberspace, 48 FED. LAW. 59,
59 (2001) (reviewing LAWRENCE LESSIG, CODE AND OTHER LAWS OF
CYBERSPACE (1999)) (commenting that the Internet is breaking down barriers
across the globe and significantly affecting our lives); Eko, supra note 60, at 449
(noting that the inventors of the Internet have realized their dream, as the "Internet
works in all comers of the globe on all kinds of computers"). The high demand for
Internet services creates a situation where regional registries and providers "are
bursting at the seams." Id.
64. See Greg Wrenn, Representing the New Media Company, 631 PLI/PAT
1373, 1380 (2000) (explaining that before content is available on the Internet, the
provider of the information must store it on a computer server that is part of a
domain or network and is connected to the Internet).
65. See Bratt & Kugele, supra note 1, at 43 (describing Internet use in various
places). In 1999, approximately 110 million people in the United States were using
the Internet. Id. In 2000, estimates indicate that 99 million people in Europe, 72
million in the Asian Pacific and 19.6 million in South and Central America were
Internet users. Id. But see Ben Goodger, Globalization - A European Perspective,
661 PLI/PAT 395, 401 (2001) (stating that between July 2000 and July 2001, there
has been a great down turn in Internet use). This down turn may be no more than a
necessary market correction. Id.
66. See Bratt & Kugele, supra note 1, at 43 (suggesting that the Internet offers
"unprecedented opportunities" in international communication and commerce).
The controversy over jurisdiction threatens to hinder the growth of e-commerce,
and suggests creation of new laws to address this issue are necessary. Id. But see
Joseph H. Sommer, Against Cyberlaw, 15 BERKELEY TECH. L.J. 1145, 1160
(2000) (suggesting that premature codification of legal doctrine in response to a
new technology can constrain an as yet unknown future).
67. See Elaine M. Spiliopoulos, The Communications Decency Act of 1996, 7
DEPAUL-LCA J. ART & ENT. L. & POL'Y 336, 359 (1997) (insisting that the
2002]
YAHOO!, INc. V. LICRA
309
of traditional notions of constitutionally protected speech as they
apply to this new medium.68 There is no clear answer as to which
country's laws apply to material posted on the Internet.69 It seems
unreasonable, however, to expect every website to comply with the
speech laws of each country of the world.70 In the United States at
least, speech over the Internet is entitled to the highest protection
from governmental restriction.7
The Internet also creates unique problems in applying current
standards of jurisdiction.72 Within the United States, jurisdiction is
based on "minimum contacts," where websites are subject to
jurisdiction in a particular state if they interact with residents of that
state. 73 Many courts follow a sliding-scale method of determining
jurisdiction: a company clearly doing business over the Internet falls
problems of defining speaker and listener over the Internet mandate a "rework[ing]" of the new "inter-active" medium).
68. See id. (explaining that lawmakers must reconsider the traditional notions
of constitutionally protected speech in order to apply them to new technology).
69. See Bratt & Kugele, supra note 1, at 43-44 (posing the question of whose
laws should apply to the posting of material on the Internet and indicating that
there is not yet an answer); see also Crane, supra note 60, at 267 (explaining that
although the Internet has grown at a fast pace, there is no single entity to regulate
the great amount of information transmitted through it).
70. See Bratt & Kugele, supra note 1, at 43-44 (stating that it would be
unreasonable to expect a business to comply with consumer protection, securities,
criminal, intellectual property, sales, and other substantive laws from all over the
world).
71. See A.C.L.U., 521 U.S. at 863 (stating that the Internet, as "the most
participatory form of mass speech yet developed," is entitled to "the highest
protection from governmental intrusion"); see also Jeffrey P. Cunard & Jennifer B.
Coplan, Developments in Internet and E-Commerce Law: 2001, 678 PLI/PAT 935,
999 (2001) (explaining how Reno v. A. C.L.U. affected the Internet).
72. See Goodger, supra note 65, at 417 (suggesting that "jurisdictional tensions
and the conflict of laws are some of the most complex issues facing an Internet
lawyer"); see also Spiliopoulos, supra note 67, at 359 (suggesting that the Internet
also presents unique problems in applying obscenity and indecency standards). But
see Sommer, supra note 66, at 1158 (arguing that jurisdictional problems existed
before the advent of the Internet, as did privacy, intellectual property, and free
speech problems). Several centuries of legal experience reveal these problems are
not recent. Id.
73. See Cunard & Coplan, supra note 71, at 1090 (recognizing that jurisdiction
over a website is more likely to exist if there is a history of residents from the
forum states interacting with the website).
310
AM. U. INT'L L. REV.
[18:295
at one end, where jurisdiction is proper; a purely passive website
falls on the opposite end, where jurisdiction is improper; and a more
ambiguous category rests in the middle.74 The rapidly developing and
constantly changing nature of the Internet also makes it difficult for
75
lawmakers to grasp the concepts with which they work.
Internationally, the issues concerning the Internet become even
more complex because of a conflict of laws problem.76 Because
anyone can view information on the Internet, every nation has an
interest in regulating it.77 This could result in the exercise of
jurisdiction over a website without intentional contacts in another
nation.78 Determining which nation has jurisdiction over a particular
74. See Zippo Mfg. Co. v. Zippo Dot Corn, Inc., 952 F. Supp. 1119, 1124
(1997) (describing the sliding scale). At one end of the spectrum are companies
clearly doing business over the Internet, such as entering into contracts with
residents of another jurisdiction that involve knowing and repeated transmission of
computer files over the Internet. Id. Personal jurisdiction is proper at this end of the
spectrum. Id. Passive websites at the other end simply post information on a
website that is accessible in another jurisdiction, and jurisdiction over them is not
proper. Id. The middle ground contains interactive websites where users can
exchange information, and jurisdiction is based on the level of interactivity and
commercial nature of the exchange of information. Id. See also Cunard & Coplan,
supra note 71, at 1090 (explaining that the company clearly doing business over
the Internet is likely subject to jurisdiction, while the passive website is less likely
to fall under the jurisdiction of the state). For those companies falling into the
middle category, jurisdiction is based on "level of interaction by and commercial
nature of the exchange of information." Id.
75. See Charles Nesson & David Marglin, The Day the Internet Met the First
Amendment: Time and the Communications Decency Act, 10 HARV. J.L. & TECH.
113, 115 (1996) (warning that the Internet changes daily and questioning how a
court could render judgment on a law that affects something which is in a constant
state of flux). "Today's fictions may turn out to be tomorrow's facts." Id.
76. See e.g., Yahoo!, Inc.,169 F. Supp. 2d at 1186-87 (providing an example
where jurisdiction over language and images on the Internet were at issue); see
also supra notes 15-59 and accompanying text (explaining the conflict in freedom
of speech laws between the United States and France).
77. See infra notes 154-55 and accompanying text (giving, as examples,
instances where German and Italian courts forced foreign citizens to appear before
their courts for breaches of those countries' speech laws).
78. See Crane, supra note 60, at 271 (stating that, because contacts over the
Internet are foreseeable worldwide, a nation interested in regulating a website may
have jurisdiction, regardless of whether the author intended contacts in that nation,
as long as minimum contacts exist within that nation).
2002]
YAHOO!, INC. V. LICRA
issue can have a significant impact on the outcome.79 For instance,
nations do not agree on one proper level of free speech; therefore
what the United States protects may be subject to criminal penalties
elsewhere. 0 Companies doing business over the Internet can never
be certain of limiting their exposure to legal risk by simply
complying with local laws.8" If absolute freedom of speech existed
everywhere in the world, problems in regulating speech over the
Internet would not exist. 2 However, this is not the case.
II. ANALYSIS
A. THE YAHOO! CASE BEGINS
The defendant in the Yahoo! Case was Yahoo!, Inc., an Internet
service provider incorporated under the laws of Delaware and
operated principally in Santa Clara, California.83 Yahoo! operates
various Internet websites and services accessible by any computer
user who has Internet access.84 Some of Yahoo!'s services operate
79. See U.S. CONST. amend. I (providing vast freedom of speech); see also
supra notes 15-59 and accompanying text (explaining the conflict in freedom of
speech laws between the United States and France, which could alter the outcome
of a case).
80. See supra notes 15-59 and accompanying text (explaining the vast
differences in freedom of speech afforded in the United States as compared to
France).
81. See Michael Geist, Is There a There There? Toward Greater Certaintyfor
Internet Jurisdiction, 16 BERKELEY TECH. L.J. 1345, 1347 (2001) (warning that it
is a very real possibility for a court in a foreign country to summon a website
author or owner into court for violating local laws).
82. See Richard J. Zecchino, Could the Framers Ever Have Imagined? A
Discussion on the First Amendment and the Internet, 1999 L. REV. MICH. ST. U.
DET. C. L. 981, 987 (1999) (discussing the problems of applying traditional
American notions of free speech to the Internet, and recognizing that this problem
would not exist were it not for varying rights to free expression based on the
medium of the speech).
83. See YAHOO! TERMS OF SERVICE (explaining that California law and courts
will settle any disputes with Yahoo!), at http://docs.yahoo.com/info/terms/ (last
visited Sept.18, 2002).
84. See Yahoo!, Inc., 169 F. Supp. 2d at 1183 (indicating how Yahoo! runs its
operations). Yahoo!'s websites and services are available to Internet users at the
Uniform Resource Locator ("URL") http://www.yahoo.com. Id.
312
AM. U. INT'L L. REV.
[18:295
under the laws of the United States, use the English language, target
U.S. residents, and utilize servers in the United States.85 Yahoo!, Inc.
distinguishes these services from Yahoo!'s subsidiary corporations,
86
which operate regional sites and services in twenty other nations.
Each of the regional sites operates in the local region's primary
language, targets local citizens, and complies with local laws.87
People from all over the world can communicate and interact through
Yahoo! 's various services, including its auction site.88
Yahoo!'s auction site manages bids placed by people all around
the world, after individual computer users post items for sale.89
While Yahoo! itself is not a party to these transactions, it performs
limited regulation of the auction site by prohibiting the sale of
particular items.9" The Yahoo! auction site informs users that they
85. See id. (describing how Yahoo! operates). The services Yahoo! offers in the
United States end in the suffix ".com." Id. See also LICRA & UEJF v. Yahoo!,
Inc. & Yahoo France, T.G.I. Paris, Nov. 20, 2000 [hereinafter November Tribunal
Decision] (stating that Yahoo! directs its auction site primarily at surfers in the
Unites States, but noting that the same cannot be said of the auction of Nazi
objects, which may be of interest to any person), available at
http://www.juriscom.net/txt/jurisfr/cti/tgiparis2000ll20.htm#texte
(last visited
Oct. 12, 2002).
86. See Yahoo!, Inc., 169 F. Supp. 2d at 1183 (noting that Yahoo! operates in
other countries through subsidiary corporations, such as Yahoo! France, Yahoo!
India, and Yahoo! Spain).
87. See id. (describing how Yahoo!'s subsidiary corporations operate). These
regional sites each include the host nation's two-letter code, and individuals can
access the sites at URLs such as http://www.yahoo.fr, for Yahoo! France and
http://www.yahoo.kr for Yahoo! Korea. ld.
88. See May Tribunal Decision, supra note 7 (noting specifically that web
surfers in France can see the pages, services, and sites of Yahoo.com, and in
particular, the auction services); see also Yahoo!, Inc., 169 F. Supp. 2d at 1183-84
(stating that Yahoo!'s services, accessible to users from all over the world, include
a search engine, e-mail, an auction site, personal web pages, shopping services,
chat rooms, and clubs).
89. See Yahoo!, Inc., 169 F. Supp. 2d at 1184 (describing the auction services
offered on Yahoo.com). After a user posts an item to auction, and the appropriate
time period lapses, Yahoo! sends a confirmation e-mail to the seller and the highest
bidder, with contact information. Id.
90. See November Tribunal Decision, supra note 85 (noting that Yahoo!
refuses to accept sale of human organs, drugs, pedophilia-related works, live
animals, and cigarettes); see also Yahoo!, Inc., 169 F. Supp. 2d at 1184 (explaining
that Yahoo! monitors the auction site, but is not a party to the transaction, and that
2002]
YAHOO!, INC. V. LICRA
313
must comply with its rules and may not offer items for sale to buyers
in countries where such transactions are illegal. 9'
The Yahoo! dispute began with a complaint from the plaintiffs,
LICRA and UEJF, two French non-profit organizations dedicated to
eliminating anti-Semitism.9 2 LICRA and UEJF based their complaint
on the fact that Yahoo!'s auction site allows the posting of items
illegal in France, including Nazi paraphernalia and Third Reich
memorabilia. 93 In April 2000, LICRA sent a cease and desist letter to
Yahoo!'s Santa Clara headquarters,94 explaining that the sale of Nazi
and Third Reich paraphernalia through Yahoo! 's auction site violated
French law.9" LICRA gave Yahoo! eight days to take steps to prevent
these sales, and then took legal action by filing a complaint against
the buyer and seller are responsible for arranging payment and delivery). Yahoo!
prohibits certain items from sale, such as: stolen goods, body parts, prescription
and illegal drugs, weapons, goods in violation of U.S. copyright laws, and goods in
violation of the Iranian and Cuban embargoes. Id. Yahoo! also provides a rating
system for the benefit of future users that allows buyers and sellers to evaluate
each other's behavior. Id.
91. See Yahoo!, Inc., 169 F. Supp. 2d at 1184 (recognizing that Yahoo! does
not actively monitor each posting, but informs auction sellers that they must
comply with Yahoo!'s policies and refrain from offering products to individuals in
jurisdictions where the sale of such items is illegal).
92. See May Tribunal Decision, supra note 7 (stating that LICRA and UEJF
both have a right to pursue in France the elimination of Nazism); see also Yahoo!,
Inc., 169 F. Supp. 2d at 1183 (providing information on LICRA and its purpose of
eliminating anti-Semitism); Bratt & Kugele, supra note 1, at 44 (informing readers
that LICRA is the International League Against Racism and Anti-Semitism, and
UEJF is the Union of French Jewish Students).
93. See May Tribunal Decision, supra note 7 (noting that Yahoo! permits
French citizens to view and purchase Nazi objects, which is a source of damage to
LICRA and UEJF); see also Yahoo!, Inc., 169 F. Supp. 2d at 1184 (stating that
individuals can and have posted Nazi and other offensive materials for auction on
Yahoo!).
94. See Yahoo!, Inc., 169 F. Supp. 2d at 1184 (providing that the cease and
desist order was sent on or about April 5, 2000).
95. See The Law of July 29, 1881 art. 24 (outlawing racist and hate speech);
French Penal Code R. 645-1 (outlawing the display, sale or exchange of Nazi or
Third Reich memorabilia, such as uniforms, insignia, and emblems reminiscent of
those worn or exhibited by the Nazis).
AM. U. INT'L L. REV.
[18:295
Yahoo! in the Tribunal de Grande Instance de Paris ("the Tribunal"
96
or "the French court").
B. THE FRENCH TRIBUNAL DECISION
The Tribunal found that French citizens have access to Nazi and
Third Reich related materials on Yahoo.com. 97 Therefore, the French
court concluded that the auction site violated R. 645-1 of the French
Criminal Code, which outlaws the sale, exchange or display of Nazi
related materials or Third Reich memorabilia. 98
In May of 2000, the French court ordered Yahoo! to: (1) eliminate
French citizens' access to any Nazi objects, relics, insignia,
emblems, and flags on the Yahoo.com auction site; (2) eliminate
French citizens' access to web pages on Yahoo.com that display text,
extracts, or quotations from Mein Kampf, Hitler's autobiography, or
Protocol of the Elders of Zion, a collection of writings about the
secret police of Czarist Russia; (3) post a warning on Yahoo! France
stating that searches on Yahoo.corn could lead to sites containing
material prohibited by R. 645-1 of the French Criminal Code, 99 and
that viewing of such material could result in legal action against the
Internet user; and (4) remove from browser directories accessible in
96. See Yahoo!, Inc., 169 F. Supp. 2d at 1184 (describing the order of events
and explaining that LICRA filed a civil suit in the High Court of Paris).
97. See May Tribunal Decision, supra note 7 (noting that web surfers in France
can view and purchase Nazi objects through the Yahoo.com auction site); see also
Yahoo!, Inc., 169 F. Supp. 2d at 1184 (stating that such materials are available to
the French directly on Yahoo.com or through a link on Yahoo.fr). The French
court found that Yahoo.com's auction site provided access to approximately 1,000
Nazi and Third Reich related objects. Id. The items available included: Adolf
Hitler's Mein Kampf; The Protocolof the Elders of Zion, a Russian Czarist secret
police report of an anti-Semitic nature; and purported "evidence" of the
nonexistence of the Holocaust gas chambers. Id.
98. See May Tribunal Decision, supra note 7 (ruling that the display and sale of
Nazi objects constitutes a violation of French Penal Code R. 645-1, which outlaws
the exhibition of objects reminiscent of the Nazis); see also Yahoo!, Inc., 169 F.
Supp. 2d at 1185 n.2 (stating that Yahoo!'s auction violates another French law,
which prohibits the purchase or possession of such items in France).
99. See French Penal Code R. 645-1
memorabilia).
(prohibiting the display of Nazi
2002]
YAHOO!, INC. V. LICRA
the French Republic index headings entitled "negationists"'' ° and
from all hypertext links the term "negationists" under the heading
"Holocaust." 0 1
The French court further ordered Yahoo! to dissuade French
citizens from accessing the site and to take all necessary measures to
make it impossible to access the Nazi artifact auction and any other
site or service that may constitute an apology for Nazism or a
contesting of Nazi crimes. 02 In addition, the French court ordered
Yahoo! to pay a penalty of 10,000 Francs to LICRA. °3
Yahoo! asked the French court to reconsider the terms of the
order. 104 It claimed that compliance with the entire order was
technologically impossible.f °5 In response, the French court gathered
100. See Barbara Guidice, Controversy Over Holocaust Denial Sparks Furorat
2 French Universities, CHRON. OF HIGHER EDUC., Aug. 13, 1999 (explaining that
the term "negationist" is used in France to refer to "theories and writings that
at
available
of
it."),
aspects
or
Holocaust
the
question
http://www.ferris.edu/isar/arcade/holodenial/france.htm (last visited Oct. 12,
2002); see also Matthew Herrington, An Expert Witness Report on the Holocaust,
and its Deniers, FINDLAW'S BOOK REVIEWS (Mar. 8, 2002) (reviewing ROBERT
JAN VAN PELT, THE CASE FOR AUSCHWITZ: EVIDENCE FROM THE IRVING TRIAL
(2002) (stating that the negationist view denies that hundreds of thousands of
human beings were put to death by gas by the Nazis in Auschwitz), at
(last
http://writ.news.findlaw.com/books/reviews/20020308-herrington.html
visited Apr. 15, 2002).
101. See Yahoo!, Inc., 169 F. Supp. 2d at 1184-85 (listing the four orders that
the French court placed against Yahoo!); see also May Tribunal Decision, supra
note 7 (stating the court's order more generally).
102. See May Tribunal Decision, supra note 7 (ordering Yahoo! to interrupt a
connection when a French citizen views material constituting an apology for
Nazism); see also Yahoo!, Inc., 169 F. Supp. 2d at 1185 (further explaining the
French court's order).
103. See May Tribunal Decision, supra note 7 (ordering Yahoo!, Inc. to pay
LICRA 10,000 Francs, and Yahoo!, Inc. along with Yahoo France to pay UEJF
10,000 Francs). The French Tribunal set July 24, 2000, as the date for Yahoo! to
demonstrate the measures it would take to comply with the order. Id.
104. See Yahoo!, Inc., 169 F. Supp. 2d at 1185 (stating that Yahoo! asked the
French court to reconsider the terms of the order). See generally, November
Tribunal Decision, supra note 85 (giving the court's decision after reconsideration
and consultation of experts).
105. See November Tribunal Decision, supra note 85 (listing Yahoo!'s
arguments, which include a claim that there is no technical means capable of
satisfying the terms of the May 22 order); see also Yahoo!, Inc., 169 F. Supp. 2d at
1185 (explaining Yahoo!'s argument that full compliance with the order was
AM. U. INTL L. REV.
[18:295
expert opinions concerning the feasibility of eliminating French
citizens' access to certain Yahoo! services. 0 6 In November of 2000,
the French court reaffirmed its previous order and gave Yahoo! three
months to comply, after which a penalty of 100,000 Francs per day
would be enforced for noncompliance. 07
Yahoo! subsequently posted the required warning, prohibited the
auction of items in violation of French Penal Code R. 645-1, and
amended its auction policy to prohibit the sale of items that promote
hate or violence. 08 However, Yahoo! still has available some items
that may violate the French order, and still has links to other sites
that may violate the order.0 9
C. THE U.S. DISTRICT COURT DECISION
Following the French decisions, Yahoo! filed a complaint in the
U.S. District Court for the Northern District of California seeking a
declaratory judgment that the French court's orders were neither
recognizable nor enforceable under the laws of the United States. 10
technologically impossible). Yahoo! admits it could easily comply with part three
of the order by posting a warning on Yahoo.fr, but that screening out French users
was not possible. Id.
106. See November Tribunal Decision, supra note 85 (identifying the experts as
Vinton Cerf, Ben Laurie, and Francois Wallon); see also Yahoo!, Inc., 169 F.
Supp. 2d at 1185 (indicating that the French court sought expert opinions on the
matter).
107. See November Tribunal Decision (stating that the French court reaffirmed
its May 22, 2000 order, requiring Yahoo! to comply within three months or face a
penalty of 100,000 francs for each day of noncompliance); see also Yahoo!, Inc.,
169 F. Supp. 2d at 1185 (explaining that 100,000 Francs is equal to about U.S.
$13,300). The French court also noted that potential penalties against Yahoo!
could not be collected from Yahoo! France. Id.
108. See Yahoo!, Inc., 169 F. Supp. 2d at 1185 (explaining the subsequent
actions taken by Yahoo!); see also YAHOO! AUCTION GUIDELINES (warning users
that certain items may not be posted for auction, such as "[a]ny item that promotes,
glorifies, or is directly associated with groups or individuals known principally for
hateful
or
violent
positions
or
acts"),
at
http://user.auctions.Yahoo.com/html/guidelines.html (last visited Sept. 18, 2002).
109. See Yahoo!, Inc., 169 F. Supp. 2d at 1185 (explaining that the Yahoo!
auction site still sells stamps, coins, copies of Mein Kampf and permits users to
access other sites that contest the existence of Nazi crimes).
110. See Complaint for Declaratory Relief, Yahoo!, Inc. v. LICRA, 169 F. Supp.
2d 1181 (N.D. Cal. 2001) (No. C 00-21275) (arguing that the French order is
2002]
YAHOO!, INC. V. LICRA
Yahoo! argued that it lacks the technology to block French citizens
from accessing the Yahoo.com auction site or other sites on
Yahoo.com that may violate the French order." ' Yahoo! contended
that it could not comply with the order without completely banning
Nazi-related items from the site, and argued that such a ban would
12
impermissibly infringe upon its First Amendment rights.'
The issue in the case was whether another nation can regulate
speech within the United States without violating the Constitution,
on the basis that the speech can be accessed through the Internet in
that nation."1 3 The Court answered this question in the negative and
stated that it must decide the case in accordance with the
Constitution and laws of the United States. 1 4 The Court explained
that Yahoo! could benefit from the declaratory judgment it was
neither recognizable nor enforceable because of the First Amendment guarantee of
freedom
of
speech),
available
at
http://tomwbell.com/NetLaw/Ch03/YahooComplaint.html (last visited Oct. 12,
2002).
111. See Yahoo!, Inc., 169 F. Supp. 2d at 1185-86 (stating Yahoo!'s reasons
concerning why it should not have to comply with the French court's order).
112. See id. at 1186 (explaining Yahoo!'s arguments). Subsequently, defendants
moved to dismiss the action, claiming that the District Court lacked jurisdiction,
but the motion was denied. Id. Yahoo! then moved for summary judgment, which
was opposed by defendants. Id.
113. See id. at 1186 (stating the issue of the case). Speech over the Internet
probably often violates many foreign nations' laws. Id. For example, speech over
the Internet may violate China's laws against religious expression, the U.K.
restrictions on freedom of the press, or the laws of various nations against
advocacy of gender equality or homosexuality. Id.
114. See Yahoo!, Inc., 169 F. Supp. 2d at 1187 (indicating that there is no clear
answer as to what principles should guide a decision, if and when a foreign nation
seeks enforcement of their laws against Internet service providers such as Yahoo!).
The court also explained that a motion for summary judgment should be granted
when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. The moving party bears the initial burden of
informing the court of the basis for the motion and demonstrating the absence of a
triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If
the moving party meets this initial burden, the burden shifts to the non-moving
party to present specific facts showing that there is a genuine issue for trial. FED.
R. Civ. P. 56(e); Celotex, 477 U.S. at 324. A genuine issue for trial exists if the
non-moving party presents evidence from which a reasonable jury, viewing the
evidence in the light most favorable to that party, could resolve the material issue
in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49; Barlow
v. Ground, 943 F.2d 1132, 1134-36 (9th Cir. 1991).
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seeking, because it would protect Yahoo! from the French order." 5
The Court found that Yahoo! was facing a present threat, 16 that there
was an actual controversy, and that the French penalties if not
declared unenforceable could be applied retroactively.' ' 7
Further, the Court explained that a U.S. court could not
constitutionally issue an order like the one handed down by the
French Tribunal because the First Amendment forbids viewpointbased regulation of speech by the government." 8 The Court asserted
that the French order was "too general and imprecise" to survive the
strict scrutiny of the First Amendment because it did not provide a
specific explanation of what Yahoo! is required to do. 119 In addition,
115. See Yahoo!, Inc., 169 F. Supp. 2d at 1187 (explaining that declaratory
judgment protects potential defendants from multiple actions by providing a means
by which a court declares in one action the rights and obligations of the litigants).
The Declaratory Judgment Act was created to relieve potential defendants from the
threat of impending litigation, while an adversary might never initiate the suit. See
Japan Gas Lighter Ass'n. v. Ronson Corp., 257 F. Supp. 219, 237 (D.N.J. 1966),
cited in Yahoo!, Inc., 169 F. Supp. 2d at 1189. The Act allows such parties to avoid
potential damages by asking for a declaratory judgment, once the adverse positions
are crystallized and the conflict of interests is real and immediate. Yahoo!, Inc.,
169 F. Supp. 2d at 1189. The court also explained the actual controversy
requirement. Id. at 1187. Additionally, the court explained that defendants'
arguments suggest ways to avoid deciding the issues of the case, but are not
supported by the facts in the record. Id. at 1188.
116. See Yahoo!, Inc., 169 F. Supp. 2d at 1188 (stating that the fact that a
penalty is provisional does not mean that Yahoo! does not face a present and
ongoing threat from the existing French order). The court also points out that the
defendants have not expressed a willingness to withdraw the order or absolve
Yahoo! from any penalty, despite their apparent satisfaction with Yahoo!'s efforts
to comply. Id.
117. See id. at 1189 (declaring that Yahoo! cannot rely on defendants'
assessment of compliance). Yahoo! continues to offer some items that appear to
violate the order, such as Third Reich memorabilia and Mein Kampf and still
offers access to web pages containing Nazi and anti-Semitic content. Id. The fact
that Yahoo! does not know whether it has complied with the order, because of the
vagueness of it, is the type of harm against which the Declaratory Judgment Act
was designed to protect. Id. There is no question that under French law the French
order is valid and a penalty could go back to the date of the order. Id. at 1190.
118. See Yahoo!, Inc., 169 F. Supp. 2d at 1189 (explaining that the Constitution
does not allow restrictions on speech unless there is a compelling government
interest, for example avoiding a clear and present danger of imminent violence).
119. See id. (stating that the language, "take all necessary measures to dissuade
and render impossible any access via Yahoo.com to the Nazi artifact auction
2002]
YAHOO!, INC. V.LICRA
319
the Court noted that the order required Yahoo! to take actions that
would impermissibly chill or censor protected speech, thus
"unquestionably [causing] irreparable injury. "120
Although the U.S. Constitution requires full faith and credit to be
given to judgments of sister states, territories and possessions of the
United States, the extent to which a state honors the judicial
decisions of a foreign nation is a matter of choice, under "comity of
nations. 12' U.S. courts usually recognize foreign judgments, but not
if enforcement would violate the fundamental interests or public
policy of the United States.
22
The French order's attempt to restrict speech through content and
viewpoint-based regulation is inconsistent with the First
service and to any other site or service that may be construed as constituting an
apology for Nazism or a contesting of Nazi crimes" does not specifically describe
what is proscribed for Yahoo!).
120. See id. at 1189-90 (explaining that the French order violates, or "chills"
Yahoo!'s First Amendment rights). The defendants went on to unsuccessfully
argue that at the present time, there was no real or immediate threat, since the
French order could not be enforced until the French court fixes a penalty. Id. The
court notes that the defendants did not bother arguing that the French order could
be enforced within the United States, but instead argued that there was no
immediate threat to Yahoo!'s First Amendment rights. Id.
121. U.S. CONST. art. IV, sec. 1,cl. 1;see Yahoo!, Inc., 169 F. Supp. 2d at 1192
(stating that 28 U.S.C. § 1738 indicates that no legal judgment has effect of its own
force beyond the limits of the sovereignty from which its authority is derived);
Hilton v. Guyot, 159 U.S. 113, 163 (stating that comity is "neither a matter of
absolute obligation ... nor of mere courtesy and good will").
122. See Yahoo!, Inc., 169 F. Supp. 2d at 1192 (stating that U.S. courts will not
uphold foreign judgments if they are against public policy); see also Somportex
Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971) cert.
denied, 405 U.S. 1017 (1972) (explaining that U.S. courts generally recognize
foreign judgments unless they are prejudicial or contrary to the country's
interests); Michael Gruson, The Act of State Doctrine in Contract Cases as a
Conflict-of-Laws Rule, 635 PLI/COMM 129, 169 (1992) (describing instances
where the United States has recognized and respected laws of another nation,
under comity of nations). Such instances include contracts executed in foreign
countries, where U.S. courts will base decisions on the contract law of the
appropriate country. Id. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
OF THE UNITED STATES § 481 (1987) (stating that judgments granting injunctions
are not generally entitled to enforcement, under comity of nations); RESTATEMENT
(SECOND) OF CONFLICT OF LAWS § 102 cmt. G (1971) (stating that enforcement of
foreign judgments is generally limited to actions to enforce monetary judgments).
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Amendment. 23 Although France can regulate speech that occurs
within its borders, the United States cannot enforce an order that
violates the Constitution's First Amendment protection of freedom of
speech when that speech occurs simultaneously inside the United
States. 12 4 The Court reasoned that limited comity in the area of
freedom of speech was sound because the protections afforded to
Americans by the First Amendment would be destroyed if other
nations were allowed to enter judgments based on the laws
appropriate in foreign lands.'25 The Court granted Yahoo!'s request
for a declaration that the First Amendment precludes enforcement
within the United States of the French order because it would
26
regulate the content of Yahoo!'s speech over the Internet.
D. ANALYSIS OF THE COURTS' DECISIONS
1. The French Decisions
In looking at the laws of France' 27 and the French version of
freedom of speech already discussed,'28 it appears that the Tribunal
123. See Yahoo!, Inc., 169 F. Supp. 2d at 1192 (concluding that the French
order's content and viewpoint-based regulation of the web pages and auction site
were inconsistent with the First Amendment).
124. See id. (declaring that the United States may not enforce a foreign court
order that chills First Amendment speech).
125. See id. at 1193 (determining that although restrictions on freedom of speech
may be appropriate for foreign countries, they are antithetical to the protections of
the Constitution). The defendant moved for further discovery, asserting that it may
lead to the development of triable issues of fact and preclude summary judgment
on First Amendment grounds. Id. However, the court stated that whether Yahoo!
has the technological capabilities to comply with the order is not material, and that
speech spoken in the United States cannot be regulated by a foreign nation just
because it could later be heard there. Id. at 1194.
126. See id. (granting Yahoo!'s motion for declaratory judgment).
127. See DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 5 (Fr.
1789) (granting authority to public officials to outlaw certain actions to prevent the
abuse of freedom of speech), available at http://www.hrcr.org/docs/frenchdec.html
(last visited Oct. 12, 2002); FR. CONST. art. 4 (granting Parliament the power to
pass laws concerning civil rights and fundamental guarantees such as freedom of
speech); see, e.g., French Penal Code R. 645-1 (prohibiting the display of Nazi
memorabilia).
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YAHOO!, INC. V. LICRA
ruled correctly in both its May and November decisions.
29
The laws
of France clearly state that freedom of speech is protected and
valued, but state that it may be limited by any number of laws in
order to avoid an abuse of that freedom. 3 0 Article Eleven of France's
Declaration of the Rights of Man and of the Citizen is restricted by
various laws, including French Penal Code R. 645-1.131
The Declaration, however, is not the only source of freedom of
speech for the French, and the Tribunal may have ruled
incorrectly. 3 2 France is a Member State of the Council of Europe and
is also bound by the Convention for the Protection of Human Rights
and Fundamental Freedoms.'33 This Convention, which entered into
force in 1953, is modeled after the Universal Declaration of Human
34
Rights proclaimed by the General Assembly of the United Nations.
The Convention aims at securing the universal and effective
recognition and observance of the rights declared in the Universal
Declaration. 135
128. See DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. II (Fr.
1789) (providing freedom of speech, but allowing for its limitation as determined
by the law), available at http://www.hrcr.org/docs/frenchdec.html (last visited Oct.
12, 2002).
129. See supra notes 39-59 and accompanying text (explaining all of the
limitations placed on freedom of speech in France).
130. See DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 11 (Fr.
1789) (establishing that freedom of communication is an essential right of man),
available at http://www.hrcr.org/docs/frenchdec.html (last visited Oct. 12, 2002).
13 1. See id. (indicating that citizens may be responsible for the abuse of freedom
of communication); see also French Penal Code R. 645-1 (restricting certain forms
of communication).
132. See Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, art. 10 [hereinafter European Convention] (stating the
freedoms
of expression
that the treaty provides),
available at
http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm (last visited Oct. 12,
2002). As a member of this Convention, France is bound to provide freedom of
speech to its citizens. Id. art. 59.
133. See id. Chart of Signatures and Ratifications (listing France as a Member
State of the Council of Europe and as a signed member of this Convention on the
Chart of Signatures and Ratifications of the Treaty).
134. See European Convention, supra note 132 (explaining in the introductory
comments that the Convention considered the aim of the Universal Declaration of
Human Rights and intended to further the goals of the Universal Declaration).
135. See id. (discussing the goals of the Convention).
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Article Ten of the European Convention guarantees Freedom of
36
Expression and the French judiciary has not ignored this guarantee. 1
In 1998, less than two years before the Yahoo! Case, the French
criminal court relied on the European Convention on Human Rights
in dismissing charges against five newspaper directors for violating
laws that restrict freedom of speech in France.' 37 The French
government accused these five people of violating a French law
prohibiting the publication of political polls during the week before
an election.'38 In that case, the court dismissed the charges, holding
that the law in question was incompatible with the guarantees of
freedom of speech contained in Article Ten of the European
Convention. 3 9 The court determined that because the French public
could see the polling data on foreign websites, the prosecutor's
136. See id. art. 10 (providing freedom of speech). Article Ten states:
1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
Id. See also CAIRNS & MCKEON, supra note 39, at 114 (stating that the European
Convention on Human Rights has been fully incorporated into French law);
Mahasti Ravazi & Thaima Samman, Yahoo! and Limitations of the Global Village,
19 COMM. LAW. 27, 27 (2001) (referring to a case in which a French court relied
on the European Convention on Human Rights to protect French citizens' freedom
of speech).
137. See Ravazi & Samman, supra note 136, at 27 (explaining that the charges
against five people were dropped because the complexity of the Internet made it
nearly impossible to enforce a law against publishing political polls during the
week before an election).
138. See id. (although it was illegal to publish political polls during the week
before an election, foreign newspapers had posted them on the Internet, so that
French citizens could access them anyway).
139. See id. (explaining that the court refused to apply clear and enforceable
criminal laws because they were in conflict with the European Convention's
guarantee of freedom of speech).
2002]
YAHOO!, INC. V. LICRA
323
efforts to enforce the law against publication were inconsequential. 140
There is no reasoning within the French Yahoo! decisions that
4
explains why the outcome was different in that case.' '
Additionally, it seems that the French Yahoo! decisions violate the
part of Article Ten of the Convention that guarantees freedom "to
receive and impart information and ideas."' 142 French citizens desiring
to educate themselves about the history of France have had a difficult
time learning the truth about the World War II period, since France
has outlawed not only war paraphernalia, but also some books
discussing the war or major characters in it. 43 Many people in France
have recently become curious about what really happened during that
era in their country, but the French government's insistence on
forgetting and hiding the tragedies of the war have hampered their
efforts at learning more. 144 All of these issues bring to light an
internal inconsistency between French law and the Tribunal's
decision.
2. The U.S. Decision
The decision of the U.S. district court clearly conforms to
45
American notions of freedom of speech as well as U.S. case law.
Freedom of speech is highly valued among the American people;
140. See id. (stating that the evolution of the Internet made enforcement of the
criminal law no longer possible).
141. See May Tribunal Decision, supra note 7 (lacking a discussion of this
seemingly significant French case); November Tribunal Decision, supra note 85
(deciding the Yahoo! Case without mentioning this seemingly on point case).
142. See European Convention, supra note 132, art. 10 ("This right [Freedom of
Expression] shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of
frontiers.").
143. See Peeler, supra note 58, at 354 (explaining that the recent prosecution of
former French government officials for war crimes during World War II has
motivated French citizens' curiosity about the truth of what happened in France
during that time). Their search for the truth is hampered by France's insistence to
forget and hide the tragedies of the war. Id. at 357.
144. See id. (noting French citizens' interest in World War II and the
Holocaust).
145. See supra notes 15-38 and accompanying text (explaining the status of the
First Amendment within the United States and related case law).
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accordingly, the First Amendment is subject to minimal restriction. 46
Following precedent, the U.S. court had a duty to protect Yahoo!'s
freedom of speech by preventing France from chilling that
freedom.
147
The Yahoo! decision was fairly simple and straightforward for the
U.S. court because it involved a clear violation of Yahoo!'s First
Amendment rights to free speech.1 48 Some forms of expression are
not afforded such strong protection under the First Amendment, as in
the case of obscenity. 49 Cases that fall into this gray area make the
international inconsistency in speech laws even more complex.5 0 If
Yahoo! had been selling online views of obscene images, rather than
World War II collectors' items, the Court may not have arrived at the
same decision.' 5
3. InternationalInconsistency Callsfor a Solution
Not only is there internal inconsistency between French law and
the Tribunal's decision, but there is also a more important
international inconsistency between freedom of speech laws in the
146. See supra notes 20-26 and accompanying text (explaining the very few
restrictions placed on freedom of speech in the United States).
147. See Stromberg, 283 U.S. at 369 (stating that freedom of speech is
fundamental to American society); R.A. V., 505 U.S. at 382 (explaining that content
based regulations on speech are "presumptively invalid"); First Nat'l Bank of
Boston, 359 N.E.2d at 1269-70 (granting freedom of speech to corporations);
Johnson, 491 U.S. at 414 (stating that speech cannot be prohibited simply because
it is offensive); Collin, 447 F. Supp. at 676 (ruling that a prohibition on handing
out materials promoting racial or religious hatred was unconstitutionally vague);
Reno, 521 U.S. at 849 (striking a statute designed to protect minors from viewing
pornography and other offensive material on the Internet because the restriction
was unconstitutional under the First Amendment).
148. See Yahoo!, Inc., 169 F. Supp. 2d at 1194 (granting a declaration to Yahoo!
that the First Amendment clearly prohibits enforcement of the French order).
149. See FARBER, supra note 16, at 14 (stating that some forms of speech are not
as strongly protected under the First Amendment, such as obscenity, incitements to
violence, libel, fighting words, and commercial advertising).
150. Id.
151. See Roth, 354 U.S. at 479 (upholding the constitutionality of an obscenity
statute).
YAHOO!, INC. V. LICRA
2002]
United States and France. 52 The Yahoo! Case was not about the law
applicable to the Internet, but instead it was about the confrontation
of the essential values of two countries, and the fact that those
differences come into play with speech over the Internet.'53 The
Yahoo! Case is not an isolated incident, and similar problems occur
globally. 4 For instance, German and Italian courts have also
recently held foreign citizens accountable for breaches of domestic
speech laws allegedly committed over the Internet. 5
This inconsistency in speech laws creates a problem that will
continue into the future, especially as the Internet grows and
changes. 6 The Internet is rapidly evolving and will continue to
affect us internationally, as we begin to realize its full potential. 57 As
152.
Compare U.S. CONST. amend. I (providing vast freedom of speech), with
Article Eleven of France's Declaration of the Rights of Man and of the Citizen
(providing for more limited freedom of speech laws). See generally supra note 40
and accompanying text (explaining the background and interpretation of Article
Eleven).
153. See Ravazi & Samman, supra note 136, at 29 (explaining the underlying
importance of the Yahoo! Case).
154. See id. at 28 (indicating that other European courts have made similar
decisions to the French decision in the Yahoo! Case). In December 2000,
Germany's highest court, the Bundesgerichthof, held that a website based in
Australia could be subject to Germany's laws against pro-Nazi speech and denial
of the Holocaust. Id. Also, an Italian court ruled that Italian libel law could be
applied to any online information that could be read in Italy. Id. Under these
theories, the law of any country could be applied to any information available on
the Internet, regardless of its place of origin or its intended audience. Id.
155. See id.
156. See Bratt & Kugele, supra note 1, at 42 (setting forth estimates that by
2005, over 765 million people will be accessing the Internet). The authors consider
the question of which countries' laws should apply to the posting of material on the
Internet, but indicate that there is not yet an answer. Id. at 42-43. See also Kaplan,
supra note 63, at 59 (commenting that the Internet is breaking down barriers across
the globe and significantly affecting our lives); Denis T. Rice, 2001: A Cyberspace
Odyssey Through U.S. and E.U. Internet Jurisdiction Over E-Commerce, 661
PLI/PAT 421, 446 (2001) (indicating that the Internet of today is but a glimmer of
what lies ahead in digital communications).
157. See Ian C. Ballon, The Law of the Internet: Developing a Frameworkfor
Making New Law, in GLASSER LEGAL WORKS - THE TECHNOLOGY ANSWER SHOW
CONFERENCE AND EXHIBITION 63, 67 (1998) (explaining that the Internet is
evolving quickly and exciting technologies are merely in their infancy); see also
Charles R. Topping, The Surf is Up, But Who Owns the Beach?-Who Should
Regulate Commerce on the Internet?, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y
326
AM. U. INT'L L. REV.
[18:295
the Internet becomes a more widely used and mainstream media,
online anonymity is likely to decrease, making it easier to identify
people speaking on the Internet. 58 Technology such as Internet
telophony, real-time video, and webcasting are in their infancy, and
businesses have barely tapped the commercial potential of the World
Wide Web.' 59 In the future, the Internet may be the primary way
municipalities transact business with citizens. 6" Internet use has
increased dramatically, and the increase is likely to continue as more
companies integrate the Internet into their daily business practices. 6 '
If nothing is done about the international inconsistency of freedom
of speech over the Internet, the problem will only grow.162 One major
effect that non-action will have is an eventual barrier to the future
growth of e-commerce. 63 Businesses uncertain of the laws of other
nations-whether they can be dragged into court in those nations or
what the outcome of a foreign lawsuit would be' 64-will
be less
179, 192 (1999) (stating that we are not only "befuddled" by the difficulties of the
Internet, but that its full potential has yet to be realized).
158. See Ballon, supra note 157, at 65 (explaining that once the Internet
becomes more of a mainstream media source, foreign countries are likely to see a
common interest in cooperating to identify the sources of anonymous Internet
conduct).
159. See id. at 67-68 (explaining that the potentials of the Internet are just
beginning to be recognized, and that new technology can replace what is new
today in less than a year's time).
160. See Steven Masur, Cyber Symposium-Legal Issues of Broadcastingon the
Internet, 14 TOURO L. REV. 7, 7 n.2 (1997) (explaining that the Internet will be
"the primary way cities, counties and states transact business with citizens"
(quoting Stephen P. Gallagher and Joseph D. Bermingham, Technology and the
Legal Profession: Conflict and Opportunity,68 N.Y. ST.B.J. 24, 26 (1996))).
161. See Ballon, supra note 157, at 67 (stating that Internet use is going to
increase as more and more businesses teach their employees to use it in
conjunction with their companies).
162. See infra notes 164-66 and accompanying text (explaining why this
problem is not going to correct itself).
163. See Robert M. Kossick, The Internet In Latin America: New Opportunities,
Developments & Challenges, 13 FLA. J. INT'L L. 263, 265 (2001) (explaining the
analogous situation in Latin America where the uncertainty of liability related to
Internet transactions may eventually cause a decline in e-commerce due to the fear
of foreign lawsuits).
164. See Rice, supra note 156, at 496-97 (stating that since web advertisers are
subject to different and possibly conflicting laws, advertising could become a
2002]
YAHOO!, INC. V. LICRA
likely to utilize Internet transactions.1 65 As for those already involved
in e-commerce, it may be financially sound to eliminate Internet
transactions altogether rather than risk the possibility of a foreign
lawsuit. 166
If every court in the world is able to assert jurisdiction over a
business merely because its website is accessible in that jurisdiction,
future Internet development will be stifled.167 Potential Internet users
would need to weigh the advantages of the Internet with the potential
of being subject to every legal jurisdiction in the world. 68 This
uncertainty would strip businesses of the predictability that is crucial
to the growth of e-commerce and the Internet. 69 Therefore, a
decision must be made about how to handle similar future disputes
concerning speech over the Internet, such as the dispute involved in
the Yahoo! Case.70
III. RECOMMENDATIONS
The discrepancy between the French Tribunal decision and the
U.S. decision in the Yahoo! Case is alarming not only to the parties
involved, but to companies in every nation doing business over the
dangerous game of chance). The Internet's inherently global reach justifies special
efforts to reduce uncertainty with respect to choice of law. Id. at 520-21.
165. See Kossick, supra note 163, at 265 (stating that parties interested in
conducting electronic transactions are uncertain of possible lawsuits and outcomes,
and therefore may chose not to deal with the Internet at all).
166. See id. (stating that the prospect of non-compliance inhibits online
commerce).
167. See infra notes 164-166, supra notes 168-69, and accompanying texts
(explaining that uncertainty about liability for speech and advertising over the
Internet may cause a downturn in Internet use by businesses).
168. See Geist, supra note 81, at 578 (explaining that if people and businesses
are forced to weigh the advantages of Internet use with the fear of being hauled
into a foreign court, they will likely favor non-use of the Internet).
169. See Rice, supra note 156, at 430-31 (warning that differences between the
laws of nations will hamper the sound operation and growth of e-commerce).
170. See Stephanie K. Hines, An Analysis of UEJF et LICRA v. Yahoo!, 5 J.
SMALL & EMERGING Bus. L. 445, 449 (2001) (noting that the California district
court did not discuss whether France properly exercised jurisdiction over Yahoo!,
and warning that the principle of comity may prevail in other judgments where the
Constitution is not offended).
328
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Internet."' The discrepancy demonstrates the drastic differences in
the protection afforded to free speech by France and that afforded by
the United States. 7 2 Differences in free speech protection exist all
over the world, not only between France and the United States.'73
This international inconsistency must be remedied in the near future
in order to avoid similar disputes from arising. 174
There are a limited number of ways the problem between France
and the United States can be addressed. On one hand, France can act
alone by choosing one of several options.'75 On the other hand,
France and the United States can take action collectively. 7 6 The
international community can apply these collective actions on a
global scale, and utilize them as a guidepost for the prosecution of
77
many other Internet crimes.1
A. RECOMMENDATIONS FOR FRANCE
1. FranceShould Prosecuteits Own Citizensfor Intentionally
Accessing ForbiddenMaterial
France can remedy this international inconsistency in free speech
rights by changing the focus of its enforcement of Penal Code R.
645-1. Instead of focusing on prosecuting foreigners who post the
171. See id. at 446 (stating that the French Yahoo! decisions alarmed businesses
because of the inherent uncertainty of conflicting laws).
172. See supra notes 15-59 and accompanying text (explaining the freedom of
speech afforded to U.S. citizens, and then explaining the lower level of freedom of
speech afforded to French citizens).
173. See supra notes 154-55 and accompanying text (stating that German and
Italian courts have required foreign citizens to defend speech law cases).
174. See supra notes 152-70 and accompanying text (explaining why it is so
important to remedy this problem in the near future).
175. See infra notes 178-206 and accompanying text (offering three unilateral
options that France can choose from in order to avoid this problem in the future).
176. See infra notes 207-36 and accompanying text (offering two solutions that
would require France and the United States to work together, and would also be
applicable on a more global scale).
177. Id.
178. See supra note 6 and accompanying text (explaining that this provision
criminalizes, among other things, the selling of Nazi paraphernalia); see also
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YAHOO!, INC. V.
LICRA
material that is considered illegal under R. 645-1, the French
government should focus on prosecuting its own citizens who
intentionally access such material."7 9
Since France enacted the code to protect its people, those citizens
should have an active role in protecting themselves. 80 France should
require citizens to filter material on the Internet on their own.' 81 If a
French citizen intentionally accesses Nazi-related material on the
Internet, he or she should be prosecuted; the person who posted the
material in the English language, on a server in the United States,
intending access by domestic computer users only, should not be
punished.182 If France were to change the focus of its enforcement of
R. 645-1, foreign companies' speech rights would maintain the
protection they are afforded in the United States.183 Foreign
companies would enjoy a greater degree of confidence in supplying
information on the Internet if French law focused on punishing
Yahoo!, Inc., 169 F. Supp. 1181 (exemplifying how France focuses its enforcement
of R. 645-1 on foreign citizens who post material on the Internet, rather than
focusing on its own citizens who access that forbidden material).
179. See May Tribunal Decision, supra note 7 (ordering Yahoo! to post a
warning on Yahoo! France stating that searches on Yahoo.com could lead to sites
containing material prohibited under French law); see also supra notes 97-101 and
accompanying text (explaining the nature of the decision).
180. See Mailland, supra note 18, at 1184-85 (explaining the French
government's belief that it should protect its people from the harm that viewing
Nazi-related materials could cause).
181. See Powell II, supra note 32, at 41 (stating that in Sweden children are
taught to filter material through ethical training, rather than parents using filtering
software or Sweden imposing restrictions on freedom of expression).
182. See May Tribunal Decision, supra note 7 (ordering Yahoo! to post a
warning on Yahoo! France stating that searches by French citizens on Yahoo.com
could lead to sites containing material prohibited under French law); see also
Ravazi & Samman, supra note 136, at 27 (explaining that charges against five
newspaper directors were dropped because the accessibility of foreign Internet
sites made it nearly impossible to enforce a law against publishing political polls
during the week before an election). The article does not contain any indication
that French law enforcement ever tried to prosecute the foreign citizen who posted
the illegal poll information on the Internet. Id.
183. See supra notes 15-38 and accompanying text (explaining the vast freedom
of speech rights afforded to citizens in the United States).
330
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[18:295
French citizens for viewing restricted materials on the Internet, rather
than punishing those companies that make information available. 184
Although France's approach may seem more efficient than seeking
out its own citizens who access offensive material on the Internet,
that assumption is not true. 85 The Yahoo! Case, for instance, did not
follow an efficient path to the final U.S. district court decision.'86 The
entire case took over a year and a half and the French organizations
presumably spent a large sum of money fighting for their position,
only to be defeated in the end.' 87 Additionally, Yahoo! still has
available some materials considered offensive under R. 645-1 and
never had to pay the fines imposed by the Tribunal. 88
2. FranceShould Repeal Penal Code R. 645-1
More than fifty years after World War II ended, French citizens
are now curious about the truth of what really happened during that
time period. 8 9 However, the search for historical truth is impeded by
Penal Code R. 645-1, a law created by the French government to rid
the nation of all symbols of the war. 90 The French public has
184. See supra notes 163-66 and accompanying text (explaining how important
predictability is to the Internet business community).
185. See infra notes 186-88 and accompanying text (describing why France's
approach is not as efficient as it seems).
186. See Yahoo!, Inc., 169 F. Supp. 2d at 1184 (providing that the Yahoo! Case
began when a cease and desist letter was sent by LICRA to Yahoo! on or about
April 5, 2000, and that a decision was reached on November 7, 2001); Ravazi &
Samman, supra note 136, at 27 (explaining that, after months of litigation and
testimony, Yahoo! finally agreed to monitor its own site).
187. See id. at 1194 (noting that the U.S. decision was in favor of Yahoo!, Inc.).
188. See Yahoo!, Inc., 169 F. Supp. 2d at 1185 (explaining that, as of the Federal
court's decision in November 2001, the Yahoo.com auction site still offered
stamps, coins, a copy of Mein Kampf, and access to other sites which could
reasonably have been "'construed as constituting an apology for Nazism or a
contesting of Nazi crimes"').
189. See Peeler, supra note 58, at 359 (explaining that the need to know what
really happened during the Occupation has been necessitated by the fact that the
"postwar purge," a period of convicting war criminals, was "incomplete and
insincere").
190. See French Penal Code R. 645-1 (outlawing the viewing or display of Nazirelated materials); see also Peeler, supra note 58, at 357 (explaining that after
World War 11 the French government tried to remove all symbols of the war from
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launched a debate surrounding this issue as citizens become more
and more interested in the government's attempt to alter their
memory of World War 11. 191 The recent prosecution of former French
government officials for war crimes motivated this interest. 91 2 After
World War II, France chose to place all the blame on the Axis
Powers in an attempt to avoid dealing with the involvement and
culpability of its own government.'93 As a result, French history, as it
is written today, is full of inaccuracies and half-truths.'94
If R. 645-1 is repealed, French citizens can more easily learn the
truth about World War II, without having to worry about being
punished for discovering Nazi information. 95 A recent study showed
that forty-five percent of French citizens believe the anti-Semitism of
the French World War II government has not been sufficiently
analyzed. 96 In a desire for freedom of information, France should
grant its citizens the right to search for the truth by repealing R. 6451.
19 7
the country in an attempt to hide the French government's involvement in
deporting French Jews to concentration camps).
191. See Peeler, supra note 58, at 353-54 (stating that a political debate has been
launched concerning the acts of France's government during World War II, and the
"politics of memory," as the government tried to alter the citizens' historical
views).
192. See id. at 354 (explaining that the impetus for French curiosity was the
recent prosecution of former French government officials for war crimes
committed during World War II).
193. See id. (explaining that the French previously chose to forget the
government's involvement in the atrocities of World War II, and instead placed all
the blame on the Axis Powers).
194. See id. at 358 (explaining that part of the historical inaccuracy is a myth
that ignores the reality of France's war time divisions and represents to the people
that all of France had been united in a common goal to fight and defeat Nazi
Germany).
195. See id. at 359 (stating that the public's appetite for information about the
Holocaust has increased since the twenty-fifth anniversary of the war prompted an
examination).
196. See Peeler, supra note 58, at 369 (indicating that the recent study also
showed forty-two percent of the people believed the French public does not
thoroughly discuss the character of the French wartime government, also referred
to as the Vichy).
197. See supra notes 189-96 and accompanying text (describing the reasons why
France should repeal R. 645-1).
332
AM. U. INT'L L. REV.
[18:295
3. FranceShould Follow the European Convention on Human Rights
As a party to the European Convention on Human Rights, France
has a duty to uphold that treaty's principles 98 The Convention is
modeled after the Universal Declaration of Human Rights and aims
to secure the universal and effective recognition and observance of
fundamental rights.1 99 Article Ten of the Convention guarantees the
citizens of all signed parties a right to Freedom of Expression,
including the right "to hold opinions and to receive and impart
information and ideas without interference" from governmental
authorities. 00
In accepting this Convention in the past, French courts have
upheld citizens' rights of expression.2"' In 1998, the French criminal
court relied on the European Convention on Human Rights in
dismissing charges against five newspaper directors for violating
laws that restrict freedom of speech in France. 202 In that case, the
court also noted that since the illegal material could be viewed on
198. See European Convention, supra note 132 (listing France as a Member
State of the Council of Europe and as a signed member of this Convention). Article
One of the Convention states that the parties to the treaty shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section 1, which
includes Article Ten's guarantee of freedom of speech. Id. art. 1.
199. See supra notes 132-35 and accompanying text (explaining that France is a
member of the European Council and that the aim of the Convention is to secure
human rights for all citizens of signed States).
200. See European Convention, supra note 132, art. 10 (granting everyone the
right to freedom of expression).
201. See Ravazi & Samman, supra note 136, at 27 (explaining a case where the
French criminal court dismissed charges against five newspaper directors for
violating a law that restricts freedom of speech by outlawing the publication of
political polls during the week before an election). The charges were dismissed on
the grounds that the law itself conflicted with the ideals of the European
Convention on Human Rights. Id.
202. See supra notes 136-41 and accompanying text (explaining how French
courts have acknowledged the protections afforded in the Convention in the past,
and that there was no explanation in the Yahoo! decision as to why the outcome
was different this time).
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YAHOO!, INC. V. LICRA
foreign websites, the prosecutor's efforts to enforce the law against
publication were inconsequential.2 °3
If France were serious about its obligations under the Convention
on Human Rights, it would grant more liberal freedom of speech to
its citizens and would do so more consistently. 20 4 Following the
provisions of the Convention would involve the repeal or nonenforcement of R. 645-1 .205 R. 645-1 is inconsistent with the
Convention because it restricts French citizens and others around the
world from posting, viewing, or reading on the Internet, materials or
opinions related to the history of World War II, specifically those
206
relating to the impact of the Nazis on Europeans of Jewish faith.
B. RECOMMENDATIONS INVOLVING COLLECTIVE ACTION
1. The "Country of Origin" Principle
Another feasible method of dealing with the problem would be for
France and the United States to act collectively by agreeing that
speech and other expression over the Internet will be regulated by
authorities in its place of origin. 20 7 This "Country of Origin"
203. See id. (noting that the law forbids publishing of political polls during the
week before an election, but that a foreign citizen posted the polls on a foreign
website, accessible in France).
204. See id. (noting the inconsistency between the decision involving the
newspaper directors and the Yahoo! decision).
205. See supra notes 189-97 and accompanying text (reasoning why the French
Penal Code R. 645-1 should be repealed).
206. See supra notes 142-44 and accompanying text (explaining that French
citizens want to learn the real history of what happened in their country during
World War 11, and that their efforts are hampered by laws such as R. 645-1).
207. See Council Directive 2000/31, paras. 1-5, 2000 O.J. (L 178) [hereinafter
E-Commerce Directive] (discussing certain legal aspects of information society
services, in particular electronic commerce, in the internal market of the European
Community),
available
at
http://europa.eu.int/eurlex/pri/en/oj/dat/2000/1178/1_17820000717en010016.pdf (last visited Oct. 12,
2002). The directive suggests implementation of the "Country of Origin" principle.
Id. paras. 5, 22. See also Goodger, supra note 65, at 419 (explaining the
suggestions of the E-Commerce Directive, one of which is the "Country of Origin"
principle). The principle means, in broad terms, that a website operator would have
a duty to follow only the domestic laws of the location where his website is
established. Id.
AM. U. INT'L L. REV.
[18:295
principle would provide website operators more assurance, knowing
they need only comply with the laws of the nation where their
website is established.2 °8
If France and the United States agreed to apply the "Country of
Origin" principle, businesses in the United States would be required
to follow only the regulations placed on speech and the Internet by
the laws of the United States. 209 These businesses, including both
small start-ups and large companies such as Yahoo!, could avoid
being concerned about researching and following the details of
French speech and Internet laws.21°
In considering the effects of this recommendation, it would appear
that one nation could not object if aspects of foreign websites varied
from
domestic
laws. 21'
For example,
the existence
of child
pornography has grown due to the advantages of the Internet.21 2 The
United States has laws that more strictly limit the creation,
possession, and distribution of child pornography than many other
nations.21 3 In keeping with the "Country of Origin" principle, citizens
208. See Goodger, supra note 65, at 419 (explaining that the principle is to be
applied within the European community and will help solve some Internet related
problems).
209. See supra notes 154-55 and accompanying text (indicating the importance
of predictability for companies doing business over the Internet).
210. Id.
211. See E-Commerce Directive, supra note 207, arts. 16-20 (explaining how
the "Country of Origin" principle would be applied).
212. See William R. Graham, Jr., Uncovering and Eliminating Child
Pornography Rings on the Internet: Issues Regarding and Avenues Facilitating
Law Enforcement's Access to 'Wonderland', 2000 L. REV. MICH. ST. U. DET. C.L.
457, 465 (2000) (discussing child pornography rings on the Internet). The three
advantages of the Internet for child pornography rings are: (1) the rapid transfer of
files and images; (2) relatively high security; and (3) almost complete anonymity.
Id. See also Mehagen Doyle, Bad Apples in Cyberspace: The Sexual Exploitation
and Abuse of Children Over the Internet, 21 WHITTIER L. REV. 119 (1999)
(explaining that law enforcement is complicated when it comes to child
pornography over the Internet).
213. See Doyle, supra note 212, at 137 (stating that the United States is one of
the most aggressive countries in dealing with child pornography); see also Jennifer
Stewart, If This is the Global Community, We Must be on the Bad Side of Town:
InternationalPolicing of Child Pornographyon the Internet, 20 HOUS. J. INT'L L.
205, 225 (1997) (opining that "the United States has been the bellwether for other
nations regarding child pornography legislation").
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YAHOO!, INC.
v. LICRA
335
of another nation could post offensive child pornography images on
the Internet and the United States would be unable to object. 14
The problems associated with the implementation of this
recommendation, however, are not as inevitable as they may seem.215
First, since almost every nation in the world has laws that restrict
child pornography, each has an interest in prosecuting its own
citizens. 216 Therefore, the United States would still be able to object
to child pornography on the Internet by informing authorities in the
offender's nation, who would then likely agree to prosecute.21 7 In
some instances, the United States has worked collectively with other
nations to bring down international child pornography rings.21 8
Second, the United States also has extradition agreements 219 with
nations such as Russia and Korea, for the purpose of prosecuting
child pornographers. 22 ° Third, child pornography is viewed globally
214. See Goodger, supra note 65, at 419 (explaining the "Country of Origin"
principle). The principle means in broad terms that a website operator would have
a duty to follow only the domestic laws of the jurisdiction in which the website is
established. Id.
215. See infra notes 216-23 and accompanying text (discussing why the
"Country of Origin" principle will not have the negative effect on the United States
that may first be apparent).
216. See, e.g., Doyle, supra note 212, at 133-37 (listing as examples of those
countries with laws regarding child pornography: the Netherlands, Germany,
France, Taiwan, Singapore, Australia, Canada, and the United States).
217. See Graham, Jr., supra note 212, at 471 (discussing which nations have
launched aggressive counter offenses to the proliferation of child pornography on
the Internet).
218. See Global Raids Target Child Porn, CNN.com (Nov. 28, 2001) (reporting
that police in nineteen countries, including the United States, worked together to
execute search and arrest warrants, in a global sweep against Internet child
at
pornography),
(last
http://www.cnn.com/200l/WORLD/europe/l 1/28/world.arrests/index.html
visited Oct. 12, 2002); Interpol Targets Child-sex Ring, CNN.com (Mar. 20, 2002)
(reporting the success of a major international police investigation, including
authorities from the United States and nine other countries, into a pedophile ring
operating on the Internet, that resulted in twelve arrests) , at
http://www.cnn.com/2002/WORLD/europe/03/20/interpol.paedophiles/index.html
(last visited Oct. 12, 2002).
219. See Graham, Jr., supra note 212, at 470-71 (noting that the United States
currently has such treaties with Hong Kong, Russia, and Korea).
220. Such prosecution agreements and extradition agreements would not be
feasible in the Yahoo! Case. I do not suggest that the United States would agree to
AM. U. INT' L. REv.
[18:295
as a universal crime. 221 Thus, international efforts have been
undertaken, such as the United Nations Convention on the Rights of
the Child, ratified by 198 countries, to prevent exploitative use of
children in pornographic materials. 223 Since many other nations are
also involved in fighting child pornography, the effects of the
"Country of Origin" principle on the United States are not nearly as
negative as they first appear.
Not only can the "Country of Origin" principle be applied to
resolve problems between France and the United States, but it can
also be applied globally. 224 If various nations were to organize an
international conference concerning the Internet, they could create an
agreement that all information posted on or transferred through the
Internet be regulated by authorities of the country in which it
originated. 225 If nations had an interest in resolving specific issues
with other particular nations, these reservations could be appended to
the agreement.226
either prosecute its own citizens for violation of French speech laws, or to extradite
its own citizens to France for prosecution.
221. See Graham, Jr., supra note 212, at 478-79 (explaining that child
pornography is reasonably considered a universal crime).
222. See Convention on the Rights of the Child, Nov. 20, 1989, G.A. Res. 44/25,
U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc A/44/49 (1989), 28 I.L.M. 1448
(entered into force Sept. 2, 1990).
223. See Doyle, supra note 212, at 120 (discussing the use of the term "child" as
articulated in the Convention on the Rights of the Child ("CRC") that was
supported by 198 countries as one possible avenue to preventing child
pornography on the Internet). The vast majority of the world is concerned about
fighting child pornography. Id. at 131. The 1993 Vienna World Conference on
Human Rights also sought to make the sexual exploitation of children an
international criminal offense, with international criminal jurisdiction. Id. at 142.
See also World Conference on Human Rights, Jun. 14-25, 1993 (explaining that
the Conference took historic new steps to promote and protect the rights of
children, by calling for the universal ratification of the CRC), available at
http://www.unhchr.ch/html/menu5/wchr.htm (last visited Oct. 12, 2002).
224. See supra notes 198-200 and accompanying text (explaining how the
original suggestion for such a solution was to be applied to all member states of the
European Council).
225. Id.
226. See
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
§ 313 (1987) (stating that a state may enter a reservation to a multilateral
international agreement, except in specified instances).
STATES
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YAHOO!, INC. V.
LICRA
337
2. An InternationalCourtfor Internet Issues
Another way to resolve similar future disputes between nations
involving speech over the Internet, is to create an International Court
for Internet issues. 227 Such an International Court could adequately
address the inherent jurisdictional problems of Internet crimes, such
as the one at issue in the Yahoo! Case.228 In addition, an International
Court for Internet crimes could provide significant benefits for law
enforcement officials worldwide.229 Some advantages would include
the "establishment of a neutral forum, the consolidation of the case in
one location rather than subjecting the parties to multiple locations,
and the free flow of evidence between countries. ' ' 230 This type of
forum "may best serve everyone's interests.
231
However, there are problems inherent in the creation of an
International Court on the Internet.232 First, there may not be broad
acceptance of the authority of such a court.23 3 Second, lacking any
sort of precedent, parties would be uncertain as to potential outcomes
227. See Neil D. Schwartz, Wall Street? Where We're Going We Don't Need
Wall Street: Do Securities Regulators Stand a Chance in Cyberspace?, 8 J.
TRANSNAT'L L. & POL'Y 79, 103 (1998) (recognizing that scholars have called for
the creation of an international criminal court for cyber-based crimes).
228. See Howard L. Steele, Jr., The Web that Binds Us All: The Future Legal
Environment of the Internet, 19 HOus. J. INT'L L. 495, 512 (1997) (explaining that
an international court for the Internet could adequately address the inherent
jurisdictional problems in Internet crimes, but that this would inevitably change the
way international crimes are prosecuted). An international court would also
provide assistance to law enforcement officials working to stop child pornography
on the Internet. id. at 513.
229. See Schwartz, supra note 227, at 103-04 (explaining the benefits of an
International Internet Court for securities regulation, a concept that can also be
applied to the regulation of speech over the Internet).
230. ld. (noting these benefits and acknowledging some problems as well).
231. Id. at 103 (explaining that the advantages of an International Court for
international securities transactions could serve everyone's needs).
232. See id. (discussing various problems that could arise if an International
Court on the Internet were created).
233. See id. (acknowledging problems with an International Court on Internet
Crime to include: lack of acceptance, politization, and lack of confidence in its
ability to punish criminals).
AM. U. INT'L L. REV.
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in cases brought before the court. 234 For instance, in the Yahoo! Case,
neither party could know ahead of time which values the
International Court would prefer-protection of freedom of speech,
or the protection of citizens by limiting what could be posted on a
website.235 Such an International Court could have some benefits in
resolving Internet-related disputes, but the problems may currently
outweigh the advantages.236
CONCLUSION
Freedom of speech is given drastically different levels of
protection in the United States and France.237 In the United States,
freedom of speech has great importance and is highly protected.238
However, in France, the government can restrict speech in various
ways and has limited citizens' rights to speak through the enactment
of laws such as Penal Code R. 645-1.239
This international inconsistency of freedom of speech laws,
coupled with the explosive growth of the Internet, has caused a
problem of great magnitude concerning speech over the Internet.24 °
The problem has affected not only France and the United States, but
also many other countries of the world. 24 The Internet is here to stay
234. See supra notes 154-55 and accompanying text (explaining the importance
for businesses of being certain about outcomes of potential litigation).
235. Id.
236. See supra notes 227-36 and accompanying text (discussing the advantages
and problems that would arise if an International Court for Internet Issues were
created).
237. See supra notes 15-59 and accompanying text (explaining the rights to
freedom of speech afforded to citizens of the United States as opposed to those
afforded the citizens of France).
238. See supra notes 15-38 and accompanying text (explaining the expansive
protection of freedom of speech in the United States).
239. See supra notes 39-59 and accompanying text (explaining the limits on
freedom of speech that the French government has put in place).
240. See supra notes 67-71 and accompanying text (discussing the problems that
have arisen because of the international inconsistency of freedom of speech laws).
241. See supra notes 154-55 and accompanying text (describing instances in
Germany and Italy where foreign citizens were brought to court for violations of
national speech laws).
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YAHOO!, INC. V. LICRA
339
and will affect our lives into the future as it grows and changes.242
Therefore, a solution must be reached in order to avoid future
disputes such as that involved in the Yahoo! Case.243 France has
several unilateral options to choose from, or it can work in
conjunction with the United States, so future disputes over speech on
the Internet can be easily resolved.244 Other nations could also apply
any collective action between France and the United States, to
resolve this problem on a larger scale.245
242. See supra notes 156-61 and accompanying text (explaining the future of the
Internet and its impact on our lives and society as a whole).
243. See supra notes 152-70 and accompanying text (describing why a solution
should be reached soon).
244. See supra notes 171-236 and accompanying text (describing several
different steps that France can take in order to avoid another Yahoo! Case, and also
suggesting two ways that collective action can be taken between France and the
United States or between any countries of the world).
245. See supra notes 207-36 and accompanying text (describing two ways that
an number of nations can use to settle future disputes concerning speech over the
Internet).